Minor v. Happersett

You want to know what I'm nervous about?

I'll tell you what I'm nervous about.

I am in the dark here with all this legal crap.

I have no idea what's going on.

All I know is you're screwing up and I can't help.

Hey, everyone, this is Leon from Fiasco and Prologue Projects.

On this week's episode of 5-4, the hosts are talking about Happersett v.

Minor.

This case is about whether or not women have the right to vote.

It originates in the 1870s.

when a Missouri woman attempted to register to vote.

When she was denied, her husband sued on her behalf under the 14th Amendment.

His argument is that the amendment's privileges or immunities clause should extend the privilege of voting to women as citizens.

The court didn't dispute that Happersett was a citizen, but they did decide that voting is not a privilege of citizenship.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have killed off our civil liberties, like syphilis killed off the founding fathers.

I am Peter.

I'm here with Michael.

Hey, everybody.

And Rhiannon.

Hi.

You know, I half expected, Peter, your metaphor, to be maybe poking a little fun at our executive producer, Leon Napok, for some

shenanigans that happened at his apartment last week.

Yes, that's right.

Our condolences to

Leon, who had to evacuate his apartment due to smoke damage because

they like over-boiled eggs.

Is that right?

He left a burner on.

He left a burner on boiling the eggs and he left the apartment.

Reduced eggs to ash.

The first time I've ever heard of such a thing in my life.

Thoughts and prayers, Leon.

Thoughts and prayers.

When I heard syphilis, I thought my first thing was, I don't know if you guys saw this, but that like there was some speculation on Twitter about the new king of England, his sausage fingers.

I don't know if you've seen his fingers are

grotesque.

What the fuck?

And that that is apparently a side effect of syphilis and that there's speculation that he's syphilitic.

Gorgeous.

That's why he he has sausage fingers.

Not clear.

I love science.

If it's just inbreeding or if it's something else, but that's the king of England.

Sure.

Wonderful.

Oh, man.

Well, I think we can conclusively say that it is syphilis.

And the King of England does have syphilis.

And you heard it here first.

Yeah, we have enough information here.

I felt good about that.

Three JDs?

They want to sue us under their bullshit defamation laws.

We say, bring it on.

Today's case, Minor v.

Happerset.

This is a case from 1875 about whether all citizens have a right to vote.

Throwback.

In this case, a woman was denied the right to vote on the basis of her gender, and she brought suit claiming that she was being denied her right to vote under the newly passed 14th Amendment.

Now, the court, and spoiler alert, in case you're learning American history history for the first time,

the court says, no, lady, you're out of luck.

Oh, you're a freaking girl.

A girl voting?

Please.

Not in America.

This case is a quiet inflection point in American history where the court had an opportunity to sort of reconceptualize the right to vote in this country, but instead chose to go with the narrowest reading of the right possible, making it a seminal case to this day for people who oppose a broad view of the franchise.

Yeah.

So Ree, if you want to give us the background here.

Sure thing.

So Peter, you've already said this case is about the 14th Amendment.

It's also about voting.

It's about gender discrimination.

You kind of get a little piece of everything here.

And of course, the Supreme Court.

fucking up the law for generations to come.

So this case comes out of Missouri.

And I don't know if y'all saw this, but in researching and reading for the episode, a few things, like more than one thing, pointed out like Missouri had two cases of national importance, two Supreme Court cases of national importance, Minor v.

Happersett and Dred Scott.

Okay.

Yeah.

Yeah.

Way to go, I think.

Like,

go chief, you know, go chief.

So Virginia Minor was born in 1824 in Virginia, actually.

She was educated at home.

And at the age of 23, she married her cousin, Francis Minor.

Note that they have the same last name already.

She married her cousin Francis Minor, who was a lawyer.

And also he was for a time the clerk of the Missouri Supreme Court.

And the couple eventually moved to a farm in St.

Louis, Missouri.

What was the like westernmost state at the time?

The only contiguous states states to the west of Missouri were Kansas and Texas.

But after all the territories, Oregon, Nevada, and California were states at the time.

So it was like bleeding edge of the contiguous states, but then there were all the territories and states beyond.

They're manifesting some destiny here.

Oh, absolutely.

And also, I'm going to talk about it in just a second, but Missouri is a Confederate state.

Right.

Yeah.

Okay.

In 1866, note, of course, that this is just after the Civil War, Virginia Minor started the women's suffrage movement in Missouri.

She was one of the founders of the Women Suffrage Association of Missouri, and she was elected that organization's first president.

Now, in 1869, a year after the passage of the 14th Amendment, her husband Francis drafted like these proposed resolutions that asserted the right of women to vote based on the wording of the 14th Amendment.

And, you know, the argument was that under the 14th Amendment, women were citizens of the U.S.

and therefore entitled to all of the privileges of citizenship.

And these resolutions that Francis and Virginia had drafted together, they were printed in pamphlet form and circulated like all around the country.

So in October 1872, a few years later, Virginia Minor attempted to register to vote for the upcoming presidential election, but she was refused by the registrar in St.

Louis.

That registrar's name is Rhys Happersett.

And just want to highlight this process and lawsuit, it's a little different from what happened to Susan B.

Anthony in New York, you know, the famous women's suffrage movement leader.

Susan B.

Anthony was able to cast a vote in the 1872 election, but then afterwards, she was arrested and she was jailed for voter fraud.

In this instance, Virginia Minor was only disallowed from registering to vote, and she never did cast a vote.

So she was never criminally charged.

Instead, she and her husband decided to file suit against the registrar, Mr.

Happersett, to challenge the refusal to allow her to register to vote.

So note also that women were not allowed to file lawsuits in Missouri until 1889.

So

Virginia's

Virginia's husband did all of this.

Like, hey, you're violating my rights.

Like, well,

some bad news.

Right, right, exactly.

Better get yourself a man.

And she's like, don't worry.

I've got my cousin/slash husband right here.

Yeah.

So Missouri courts did not agree with the minors.

They did not interpret the 14th Amendment to give the right to vote to women.

Good heavens, no.

Yeah, absolutely not.

And so the case was appealed by Francis Minor all the way to the Supreme Court, where he also argued the case.

He did oral arguments at the Supreme Court.

But back then, you know, it's my understanding that you could basically just walk into the Supreme Court and be like, I have a matter to argue.

I would like a word with the nine justices.

And they'd be like, yeah, we'll get you on the docket today at two.

Like,

do you know who argued for Missouri?

Who?

Nobody.

They didn't send anybody.

They didn't even

submit a brief.

They didn't even bother with this one.

They said in three sentences, they were just like, no, we stand by our court.

That's it.

Oh, that's great.

Neil Katyall would have done it.

Now, that's the story of how this case gets to the Supreme Court.

But we would be remiss if we did not mention that Virginia Minor did live in Missouri, which was a part of the Confederacy.

She cared for Confederate soldiers during the Civil War.

And she was staunchly against enfranchisement of black people and former slaves.

She was a member of the National Women's Suffrage Association, which opposed ratification of the 15th Amendment.

And she was so against the enfranchisement of non-whites that she had actually

resigned from her position in the Missouri Association when they joined the faction of the women's suffrage movement that supported the ratification of the 15th Amendment.

So, you know, just a little.

Classic white feminist.

Yeah, just a little.

This is OG white feminism.

I didn't know how far back it was.

I was going to say white women bullshit all the way back.

All the way back.

Exactly.

This is a little, um, a little bookmark, maybe, in like

European and American liberalism at once supporting individual liberties and the freedom of humans, right?

While also supporting slavery, right?

Yeah.

Right.

Yeah.

Like, rights,

I support them, not in the sense that I have a broad view of why everyone deserves them.

It's just like, I want them, me.

Right.

I should be able to vote.

Yep.

I should be able to.

Yeah.

All right.

So let's talk about the law.

The 14th Amendment is passed in 1868.

It's only four years later, of course, that Virginia brings the complaint, and seven years by the time it reaches the Supreme Court.

So we're still in a period where the implications of the new amendment, even in broad strokes, aren't entirely understood.

So again, as Rhee mentioned, Minor is pointing to the Privileges and Immunities Clause, which says that no state can deny citizens the privileges and immunities of citizenship.

Her argument is very simple.

Voting is a privilege of citizenship.

I am a citizen.

I should be able to vote.

And the laws prohibiting women from voting violate the Constitution.

Yeah.

But the court, in a unanimous opinion written by some fucking cracker,

Chief Justice Morrison Waite,

they do sort of an originalist analysis and they look at how women and the voting franchise have been handled historically.

So first they say, look, women are citizens, just like men are.

Thanks.

We're not denying that they qualify as citizens under the Constitution.

You know, one of the artifacts of the era here is that when holding that women are citizens of the United States, the court finds it necessary to explain its reasoning for like five pages.

Like the entire first half of the opinion is them being like, all right, well, women are citizens and like going on at length, like, okay, hear me out.

Hear me out.

Yeah, give me some space.

I mean, this is, you just follow me, okay?

However, they say it doesn't really matter that they are citizens because voting has not historically been a privilege of citizenship, and the framers did not intend for it to be.

They note that at the time of the founding, all of the colonies had discriminatory voting restrictions of various types, from sex to race to land ownership.

And so while women are citizens, that doesn't mean they can vote.

The court is embracing a narrow reading of the Privileges and Immunities Clause, saying that the clause does not add to the privileges and immunities of citizenship.

It simply gives an additional protection for those that already existed.

They state this pretty matter-of-factly, but it seems to fly in the face of at least some of the text and the historical context here.

The 14th Amendment says that states cannot deny the privileges or immunities of citizenship.

Obviously, your right to vote is directly tied to your citizenship, right?

You have to either be a citizen or in some limited cases, be someone who is about to be a citizen in order to vote.

So the right to vote and citizenship are inextricably linked.

There may be other qualifications beyond that, but it's certainly a privilege of citizenship in the literal sense.

Also, this case is taking place in the wake of a civil war, by a wide margin, the most devastating conflict the country has ever seen, even to this date.

In the immediate aftermath of the war, they passed the Reconstruction Amendments, including the 14th.

And you would think that, like, contained in those amendments is a recognition, implicit or otherwise, that the pre-existing framework had failed, right?

That these states had not been restrained enough previously, and that enhanced federal protections for civil rights were necessary.

So to just blithely state that the Privileges and Immunities Clause doesn't really change anything is sort of wild when, like, it's a safe assumption that the Reconstruction amendments were meant to pretty dramatically overhaul a constitutional order that had plainly failed, right?

And violently failed.

So, regardless of where you think the court should have landed, it seems like it might have been appropriate to step back and think about what the holistic purpose of these amendments actually was, because surely they were not intended as reinforcement for the status quo that led to the Civil War.

Yeah, I was struck reading this

case

that if you weren't familiar with American history, you wouldn't know that these,

the amendment at issue here, the 14th Amendment that's like being discussed, was a recent addition to the Constitution and one that had been added in the wake of a civil war.

And what's more, like what that civil war had been fought over.

Like it's not mentioned, it's not contextualized, it's like it never happened.

It's this bizarre, like, anti-history where

they are like

talking about the country like nothing has happened since the founding, like, literally, right?

Like, like, like, like, the 14th Amendment was just part of the Bill of Rights, and the country is just chugging along uninterrupted for 70 years, 80 years, right?

It's fucking bizarre.

Yeah.

I don't know.

I want to talk about it more later, but it's a very weird sort of histiography that's going on here.

Yeah.

Yeah, I agree.

And I also think it's like this early example of the Supreme Court immediately starting to hollow out the 14th Amendment, right?

Immediately starting to backtrack and redefine and limit the scope of what the 14th Amendment kind of really clearly says.

And, you know, over the course of American history since this time, the specific clause at issue in the 14th Amendment, the Privileges and Immunities Clause, has

more or less become pretty obsolete, almost kind of written out of the amendment.

So when the 14th Amendment was originally ratified, there were a few theories that kind of percolated to and through the Supreme Court about what the Privileges and Immunity Clause meant.

You know, first there was this theory that the Privileges and Immunities Clause was a guarantee to the citizens of different states of equal treatment by Congress.

And the Supreme Court eventually says, no, that's not what it means.

Then there was this theory that the Privileges and Immunities Clause was a guarantee to the citizens of each state of the natural and fundamental rights inherent in the citizenship of people in a free society, right?

This would have given really broad power to the Supreme Court to review restrictive state legislation, you know, similar to how it does under the Due Process Clause and the Equal Protection Clause.

This would have also given the court power to review state legislation under the Privileges and Immunities Clause.

But the Supreme Court also says,

no, that's not what the clause means.

And then there's this theory that the Privileges and Immunities Clause, you know, represented a guarantee.

guarantee to the citizen of any state that she keeps the rights that she has in her state when she goes to another state.

The Supreme Court also says, no, that's not what it means.

Until finally, the interpretation that the Supreme Court settles on, and which is, you know, the interpretation that is still in place today, is that the Privileges and Immunities Clause, all it really does, it merely forbids any state from discriminating against citizens of other states.

in favor of its own residents, in favor of its own citizens.

And so, yeah, I mean, that doesn't mean much.

There's not a lot of force there.

It's like, yeah, glad we cleared that up, I guess.

But yeah, just an example of the Supreme Court over time,

starting immediately after the ratification of the 14th Amendment, and then over time, really sort of narrowing the scope, limiting the possibility and potential of this kind of groundbreaking new constitutional language.

Yeah, and you can see how they are sort of walking back the promises of the Civil War amendments in real time, reading this opinion.

It's pretty remarkable.

There's one point where they are saying, like,

obviously you couldn't vote before,

and you were a citizen before, therefore voting is not a privilege and immunity of being a citizen.

And there's nothing, nothing at all to suggest.

that this the 14th amendment changed that at all and then in the next paragraph they're like and look at the 15th Amendment,

which says the right to vote, the right to vote.

That's the exact phrase in the 15th Amendment, the explicit phrase in the 15th Amendment.

You can't have your right to vote denied on account of your race.

And they're like, look, they wouldn't need to pass this amendment.

if the right to vote was part of being a privilege of citizenship.

It would be redundant.

Yeah.

The seamless transition from there's nothing to suggest that we have added the right to vote as a privilege of citizenship to the very next amendment talks about the quote-unquote right to vote, not phased at all.

Like unreal,

unreal cognitive dissonance going on there.

Right.

And also, like, you don't think that maybe the drafters of the 15th Amendment would have...

meant to specify like, okay, by the way, we need to be clear to the southern states, the Confederate states, yeah, you can't discriminate on race based on race yeah right i mean does that not seem like perhaps it may feel redundant but it is useful in instructing the confederate states right sometimes redundancy is good if it increases clarity right like it's actually more efficient to be redundant if it stops things before they before they get started right i mean you could say that the equal protection clause is redundant with it with the 15th amendment right yeah yeah absolutely right going back to what we were talking about earlier and just this sort of casually ignoring the Civil War in the entire context of the 14th and 15th Amendments, right?

Like,

yeah, do I think that the people who wrote and ratified these amendments were like, yeah, we're giving the women the right to vote?

No.

But

was it a radical

reconstruction of American citizenship, of American identity, of the structure of our government?

Yes.

Like, undoubtedly, yes, right.

And might that have had some unintended consequences that they didn't consider, but are sort of inherent in like saying, yeah, everybody born in the United States is a citizen.

Every citizen is equal.

They all have the same rights and the same protections under the law.

Might that have some like maybe like, wow, we didn't really think about it.

But yeah, there are some real hefty implications to rethinking the privileges of being a citizen in this country entirely, right?

Like restructuring the government entirely.

And they were doing that purposefully.

They were doing that intentionally because they were making sure that freed slaves were full citizens, right?

They were, that's what they were doing is making damn sure that freed slaves were full citizens.

And yeah, maybe that means that women get the right to vote too.

That's sort of like how it works when you rejigger your entire conception of equality in

participatory democracy.

Yeah, exactly.

It's not a crazy argument.

No, it's not.

I mean, the court's analysis is not like senseless.

I mean, I think the strongest parts of their analysis are when they point to the fact that like other parts of the 14th Amendment, like the penalty clause that refer to voting rights, tend to refer to the rights of male inhabitants

specifically.

It's a sensible point, although, again, worth noting that the 15th Amendment refers to the right to vote without the gender qualifier.

Right.

And I want to bring that up because I've had some conversations with people about this in other contexts lately where, like, they're asking me what the correct analysis is.

And this isn't always something we say explicitly, but like

there aren't correct answers to legal questions.

There are just different answers depending on what your priorities are.

Right.

Yeah.

And if your analytical priorities are identifying the intent of like the founding fathers, then then the court's right.

Women can't vote, right?

But if you're prioritizing the text, the historical context, and a broad and deferential reading of individual rights, I think that's a different story, right?

So it's a question of where you want to place the weight in these analyses.

Yes.

So moving past the can women vote issue.

Because, you know, at the end of the day, it is 1875.

And so it sort of does feel like an inevitability that they were going to say, no, women can't vote, right?

Yeah, and did we, I don't think we've mentioned this is unanimous.

It's unanimous.

Oh, yeah, 9-0.

Although I do want to say that the women's suffrage movement wasn't new at this point, right?

It was like 27 years old, I think.

Yeah, that's right.

It was pretty well established, right?

So, yes, it was an inevitability, but it's not like this was like out of nowhere, right?

This is on the backs of decades of organizing.

Absolutely.

What makes this case sort of resonate today is the ways in which the court characterizes voting rights generally.

It doesn't simply say that like the right to vote is not a privilege of citizenship and therefore women can't vote.

The court goes beyond that and expressly makes the argument that there is no right to vote inherent within the Constitution.

The opinion somewhat famously ends by noting that, quote, the Constitution of the United States does not confer the right of suffrage upon anyone, unquote.

You know, we've talked about this before, about how there is nothing in the Constitution expressly saying you have the right to vote in those terms.

But there are various clauses that imply it, right?

You have the Guarantee Clause, which says that all states must provide a Republican form of government.

You have the 15th Amendment, which again protects against racial discrimination in voting and expressly refers to the citizens' right to vote.

You have the Equal Protection Clause, and then you have privileges and immunities.

There are colorable arguments that each or all of these confer a right to vote.

And this case is the first to effectively reject all of those arguments and just say, no, there's no real right to vote in the Constitution.

That's it.

Yeah.

And just to give an example of the reasoning, they talk about the guarantee clause and they say, well, yes, the Constitution does guarantee a Republican form of government, but, quote, no particular government is designated as Republican.

So literally saying like, yeah, you get a Republican form of government, but like.

That can mean whatever we want it to mean.

Right.

Yes.

And they do more originalism and they say, well, like, obviously at the founding, the Constitution didn't guarantee a right to vote.

So whatever it means, it doesn't mean that.

And I'm not saying this to like be snarky, but like then what does the guarantee of a Republican form of government mean then?

Right?

Right.

What's the actual guarantee?

To this day, the court has never actually delineated what it means.

And in fact, as recently as in 2019 in Rucho v.

Common Cause, they punted the question by saying it's a political issue to be decided by the other branches, not the courts.

So what does it mean that the Constitution guarantees a Republican form of government?

We can't tell you, but for some reason, we're very sure that it doesn't mean that women can vote.

That's right.

That's right.

We can tell you what it's not, that's for sure.

Right.

This feels like a good time to take a break.

And we're back.

To get a little bit specific about what flows from this opinion, the refusal to recognize a broad right to vote is what allowed for much of Jim Crow.

What happened was that the court says, okay, well, the 15th Amendment, of course, says you can't discriminate in voting rights on the basis of race.

So what do the southern governments do?

They create various proxies for race and then discriminate on those bases, right?

Grandfather clauses, literacy tests, poll taxes, all designed to suppress the black vote.

If the court had held here or elsewhere that the Reconstruction Amendments did in fact establish a broad right to vote, none of that would have been possible.

And Jim Crow would have had to take a very different form, right?

If they had said, well, hey, everyone gets the right to vote with, you know, some exceptions for like criminals, et cetera, right?

Then all of a sudden, the former Confederate states don't have this avenue for suppressing the black vote.

And I mean, what happens, right?

What happens to political power in the South?

It's a completely different country if the court goes that route.

Yeah, no, I think that's right.

And I think one of the reasons why this is a good case to discuss is because this is happening right at the beginning of elites sort of walking back on the promises of Reconstruction, right?

And what we're seeing is one of like the first windows into that period where like after the Civil War, there was a brief period in which the South were like full-fledged, multiracial democracies, right?

Right.

And that period did not last.

And southern states were functionally not democracies for pretty much all of the early 20th century, right?

From like 1890s to 1960s, in effect, we're talking black voter participation,

you know, under 10% in some states, right?

Yeah.

And the groundwork for that is being laid in the 1870s and the 1880s in cases like this, in elites sort of blanching and saying, you know what, this is a whole lot of work and a whole lot of change, and we're not really fully comfortable with it.

And,

you know, maybe it's time we just let the South do their thing.

Yeah.

It feels actually very appropriate that this is a Confederate state that we're talking about here, right?

That this case arose under.

Not that the northern states were all that great on women's rights, but it just feels sort of like a good,

I don't know, metonym.

Is that the right word?

I don't know.

I have no idea.

But it feels.

No, that's right.

It feels very sort of like literary and symbolic, right?

That it's a Confederate state that this is happening under, because this is really the beginning of the end of Reconstruction, right?

The end of an ambitious attempt to rethink citizenship and rethink equality and rethink democracy in America.

And the beginning of the quote-unquote redemption and the retrenchment of

the southern powers and

all that lost cause bullshit that we're still living with today.

It's sort of a depressing case to read when you think about it like that, like seeing

this moment, right, like sort of slipping away and how different the country could have been.

And to add a little bit of

historical context concerning women's rights movement at the time, because I think, you know, this is probably an era that our our average listener is going to be a little bit less familiar with.

It's obviously a time when history is moving quickly.

In the span of a few years, right, you go from black people being property to being citizens whose rights are expressly protected by the Constitution.

And with that comes some reasonably emboldened progressives of various types who want to see the broad view of civil rights carried forward into other areas of American life.

And women's rights is one of those areas, right?

In 1873, there's a case called Bradwell v.

Illinois, where a woman sued because she was denied admission to the Illinois bar.

She wanted to be a lawyer.

The Illinois bar admissions folks said essentially that women were too fragile for the practice of law.

And so, no.

Which, by the way, I do, as I mentioned to you guys, I do agree with.

I just also think that men are as well, and that no one should be allowed to be aware.

And the argument there was like, it was actually the same one that it violated the Privileges and Immunities Clause.

But the court said that those privileges and immunities did not include the right to practice a chosen profession.

So no thanks, you know?

Yep.

So yeah, very, very shortly after the passage of the 14th Amendment, you're seeing pushback from the court against the idea.

that it might be used to advance gender equality.

Yes, absolutely.

And, you know, you mentioned Bradwell v.

Illinois, Peter, which is about, you know, the right of a woman to practice as a lawyer.

And then we have this case just a couple of years later from the Supreme Court, which is about the rights of women to vote.

And the opinions, the decisions that come out of these cases really solidify this doctrine or ideology of what's called separate spheres, that men and women occupy different areas of citizenship, that citizenship confers rights and certain privileges and immunities on the genders differently because the two genders, as they would have, are separate in sort of their purpose and what they're capable of, right?

This is also called like the public versus domestic spheres, right?

So you see the Supreme Court advancing here, extremely patriarchal, extremely sort of

men's supremacy vibes that is based on the idea that a woman is a citizen, sure,

but that means something different than a man being a citizen.

A woman is a citizen, but still only occupies an area of life that is domesticated, right?

Whereas men enjoy rights in the public space, rights as to their civil participation that women just don't have.

They're not capable of.

Yeah.

And, you know, we still, even to this day, it feels like we live in this legacy where like the 14th Amendment still doesn't fully recognize women and gender the way it does race and other sort of quote unquote suspect classifications.

And what I mean is

under the sort of classic equal protection architecture,

the way it goes is if a law explicitly classifies groups based on like race,

that law gets what's called strict scrutiny, which means it's going to be struck down like almost 95% of the time.

The court's going to be like, that law is unconstitutional.

You can't do that.

If a law explicitly classifies on the basis of gender,

on the other hand, you only get intermediate scrutiny,

which is an easier burden for the government to meet.

And I had one professor say it's more like a coin toss.

It's like 50-50.

The law might get struck down or might not.

But so even to this day, like under the 14th Amendment, women are classifying people based on gender is just not as serious a constitutional problem legally as it is to classify them based on race, national origin,

marital status of their parents.

You cannot discriminate against someone for being a bastard.

That is a big no-no under the American Constitution and American jurisprudence.

That's a case we should cover.

I think it's worth noting that

the hardcore conservative view of the Equal Protection Clause is still that it doesn't apply to women at all.

Not just that they get a lesser level of scrutiny, but like Robert Bork was a proponent of the view that it just doesn't apply to women, right?

That the 14th Amendment was about race and race relations and it doesn't apply to gender.

That's something that Antonin Scalia embraced to varying degrees at different times during his tenure.

And considering we are looking at a six to three court, it's not crazy to think that this comes back in some form or fashion, right?

Now, 30 years ago, this was something that like the hardcore originalists were openly stating.

And, you know, 30 years pass and maybe it gets a little bit less politically tenable to say out loud that you don't think the Equal Protection Clause protects women.

Right.

So they don't say it.

But, you know, there are a lot of things they're saying now that they weren't saying a few years ago.

And if you look in right-wing political spaces,

the idea that women should not just be caretakers and homebound, but that perhaps there should be social and political restrictions in place to ensure that, those views are on the the rise on like the far right.

And you look at a case like this and you can draw direct lines between what this court was thinking, what the

conservatives were saying 30 years ago, and what the fringe right is saying right now when it comes to like gender equality under the Constitution.

And it's some scary shit.

Absolutely.

There's a point I've made.

I've definitely made it when we've done Zoom QAs with our subscribers and with law school people.

I'm not sure I've made it on an episode before, but a point I want to make here is: there's a common idea you hear in law school,

if you're law student, that is popular among liberal law professors.

This was put to us by a liberal law professor at the University of Virginia when we did a QA with them, which is the idea that an aggressive liberal court invites

an aggressive conservative backlash.

And that a lot of the,

you know, in this telling, a lot of the conservative backlash we're living in today to Roe v.

Wade and whatever

was basically brought upon

by

the left itself, by going to the courts rather than trying to use the people's method of change, which is, I guess, you know, passing laws or amendments.

And I think it's bullshit.

I think that argument is total bullshit.

And I don't think it's something

people really consider because there have been a lot of periods of reactionary backlash, conservative backlash in American history.

And not all of them were sparked by runaway liberal courts, like the Warren courts of the 1960s.

And this is, this era and this case are a perfect example of that, right?

This is a conservative court doing a a very reactionary thing, reading the 14th and 15th Amendments extremely narrowly.

And in response to what?

In response to some runaway Supreme Court of the 1850s?

No.

In response to...

fucking Reconstruction, in response to the North winning the Civil War and passing amendments, right?

Like that's what the reaction is to.

That's what the quote-unquote Redeemers were reacting to.

That's what the white supremacist backlash was reacting to.

You see it again in the 1920s,

in the Lochner era of the court.

Conservative courts,

they are not reacting to some liberal runaway court.

They are just conservative reactionaries, and there will be backlash to progress in whatever form it takes.

And they will pursue.

They will pursue their goals

in every possible avenue.

And that includes paramilitary organizations.

It includes militias.

It includes state governments, includes federal governments, and includes the courts, right?

That's just the way political movements work.

Yeah.

Yeah.

I do not think fear of backlashes is a reason to shy away from seeking change through the courts, right?

Right.

It's also worth noting that like a constitutional amendment is like the most quote-unquote official, right?

Yes.

Yes.

To do like reform.

Like, you know, if you ask conservatives or debate conservatives on these issues sometimes, they'll say, well,

you know, if you want a right to abortion, you have to pass an amendment, right?

That's the constitutional process.

Exactly.

This is them not giving a shit whether you pass an amendment or not.

Right.

There's no form that the progress can take that they will accept.

It doesn't matter what you do.

It doesn't matter if you win a war and then pass a constitutional amendment.

They will still oppose it and do what they can to whittle away at it because that's what reactionaries do.

It's the scorpion and the frog.

There's nothing that you can do to avoid reaction and fretting about it is just a way to weaken your own position.

Yeah, that's right.

Which ties back to what we were saying earlier, I think just to sort of put a little bow on it, you know, about the court writing this, pretending like the Civil War never happened, right?

And completely decontextualizing

the 14th and 15th Amendments, right?

That's like, that's the way to understand these rhetorical moves the court is making here, right?

Like, this is precisely what, you know, reactionary backlash looks like.

They do not want to grapple with the Civil War, losing the Civil War, and, you know, the real ramifications of the 14th and 15th Amendments.

And this opinion is written as if those things never happened, right?

Right.

And one thing before we go out, and I had this idea for a Patreon episode in a couple of months on the penalty clause, because I think it's like under-discussed.

But one of the things that the court discusses here is the penalty clause, which is in the 14th Amendment and says that if you deny voting rights to any male inhabitants of a state, then your representation in Congress is reduced proportionally.

Right.

Now, the court is using that in two ways.

One is to say, look, it says male inhabitants, right?

which I think is a reasonable enough argument.

And the other is to say, well, look, this proves that states can take away the voting franchise because there's a penalty for it, right?

So states are given a choice.

You can give everyone the vote and you get your representation, or you can deny the vote and you don't get representation, but it's functionally a choice and therefore the states, it's sort of their prerogative.

And that's the argument the court is putting forth here.

Right.

But we are 150 years later and the penalty clause has never been enforced.

Yeah.

So, what does that argument mean now?

What does it mean that there is an unenforced remedy for the denial of the vote in the Constitution, and yet states are still denying the vote?

Yeah.

Yeah.

Just something to contemplate when you're thinking about like voting rights holistically, you know, when whatever like horrific cases surrounding the midterms get handed down by the Supreme Court.

Yeah.

All right, next week,

premium episode

Katanji Brown Jackson.

As you all know, the next Supreme Court term is coming and Katanji Brown Jackson, it'll be her first full term on the Supreme Court.

And so we're going to sort of give a little Katanji preview, talk about her career, her jurisprudence, what we think you can expect and what we want to see from her.

How many of her opinions do you guys think we should read for this?

I'll read all of them.

You read 10.

I'll read, I'm going to read two.

All right.

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Bye-bye.

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Five to four is presented by Prologue Projects.

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Leon Nafok and Andrew Parsons provide editorial support.

Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo.

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So, to just kind of blithely

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Blithely Blithely, I think.

Blithely, right?

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I was, I started thinking of Blake Lively, Blake Lively, and then I cracked myself out.